Duane Morris Class Action Review - 2023 - Report - Page 99
anticipated that the plaintiffs’ bar will continue to be creative and inventive in this space
in 2023.
II.
Key Rulings In Civil Rights Class Actions
A.
Rulings Denying Class Certification Of Civil Rights Claims
The requirements for class certification based on commonality established in Wal-Mart
Stores, Inc., et al. v. Dukes, et al., 564 U.S. 338 (2011), are equally applicable in the
context of Rule 23(b) predominance factors. This played out in several civil rights class
actions litigated in 2022.
The most significant ruling in 2022 in this regard is Cole, et al. v. Montana University
System, Case No. 21-CV-88 (D. Mont. Oct. 3, 2022), where the court denied class
certification of a Title IX lawsuit alleging discrimination and harassment on the basis of
sex. The plaintiffs were a group of women suing the defendants for alleged violations of
Title IX and sought to certify a class of approximately 76 women who allegedly
experienced harassment, retaliation, and/or discrimination on the basis of their sex. The
plaintiffs alleged that the defendants either forced them to resign, terminated their
positions, or limited their options for professional growth. Id. at 3-5. Specifically, the
plaintiffs alleged that the defendants fostered a “good ol’ boys club” culture, favoring
male athletes and employees, while excluding the plaintiffs from participating in
activities and benefits regularly afforded to their male counterparts. Id. at 3-9. Against
this backdrop, the plaintiffs alleged that a “retaliatory culture blossomed” and that all of
the plaintiffs experienced direct retaliation or the fear of retaliation for speaking out
against the defendants’ alleged discriminatory conduct. Id. at 8-9. After the parties filed
competing motion papers in support of class certification, and to deny class certification,
the court issued a lengthy and thorough order, which ruled that the plaintiffs failed to
satisfy the requirements for class certification. At the heart of the court’s analysis was
Rule 23(a)’s commonality requirement, which ultimately drove its decision to deny class
certification. In analyzing the evidence and the parties’ submissions, the court noted that
the plaintiffs’ claims appeared to be too disparate to be resolved in one stroke, which is
key to satisfying Rule 23(a)’s commonality requirement. In reaching that conclusion, the
court relied extensively on Wal-Mart. Specifically, the court found that the plaintiffs failed
to identify an employment practice that tied together the putative class members to
satisfy the reasoning in Wal-Mart. The plaintiffs, for their part, argued that the Ninth
Circuit had adopted a “permissive view of commonality” in employment discrimination
claims and that the existence of shared legal issues with divergent factual predicates
was sufficient to satisfy commonality. The court, however, rejected this argument. It
opined that its analysis was “constrained” by Wal-Mart. Id. at 17. The court reasoned
that, according to Wal-Mart, commonality requires both a shared legal theory and
shared facts such that determination of one claim can answer all others. The court
noted that there are only two mechanisms to bring a class claim alleging broad
discrimination, including: (i) show that the employer used a biased testing procedure to
evaluate potential employees; or (ii) provide significant proof that the employer operated
under a general policy of discrimination. Based on its analysis, the court held that the
plaintiffs failed to demonstrate that the defendants acted under a general policy of
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Duane Morris Class Action Review – 2023
